Hooblogger Joshua at WaxWorks provides a pointer into the most entertaining quote from constitutional scholar Lawrence Tribe’s response to a request from Rep. John Conyers regarding the legality of the Bush administration’s wiretapping its own citizens. The relevant part of Tribe’s opinion:
If [Supreme Court case] Hamdi [v. Rumsfeld] treated the AUMF as an “explicit congressional authorization” … for imprisoning an enemy combatant despite AUMF’s failure to mention “detention” or “imprisonment” in so many words, the argument goes, the AUMF must be read to impliedly authorize the far less severe intrusion of merely eavesdropping on our terrorist enemies, and on members of organizations that indirectly support them. … Surely, then, now that Al Qaeda has launched a war against us, and now that Congress has responded with the functional equivalent of a declaration of war in the AUMF, even the entirely innocent American citizen in Chicago or Cleveland whose phone conversation with a member of an Al Qaeda-supportive organization happens to be ensnared by the eavesdropping being undertaken by the NSA cannot be heard to complain that no statute specifically authorized the Executive to capture her telephone communications and e-mails as such…
The technical legal term for that, I believe, is poppycock.
…The inescapable conclusion is that the AUMF did not implicitly authorize what the FISA expressly prohibited. It follows that the presidential program of surveillance at issue here is a violation of the separation of powers—as grave an abuse of executive authority as I can recall ever having studied.
The further this administration goes into defending the indefensible, the worse the case becomes. I am starting to concur with Tin Man that we may want to start thinking about the appropriate constitutional response for such gross malfeasance.